Canada’s med-pot lawsuit

By
Reverend Damuzi
on December 17, 2002

(l-r) Alan Young, Warren Hitzig, Catherine Devries, Alison MyrdenOn May 22, 2002, before bristling microphones and cameras in Ontario’s provincial legislature in Toronto, renowned pro-pot lawyer Alan Young announced a major lawsuit against the Canadian government. Journalists scribbled notes, cameras flashed and TV crews scrambled for position in what could be the cannabis case of the century.
Young complained bitterly about the thousands of sick and dying patients who have applied under Health Canada’s Medical Marijuana Access Regulations (MMAR), but who have been denied exemptions to use the healing herb. Young also derided Health Canada’s decision to scrap pot grown by government contractor Prairie Plant Systems deep in Manitoba mine shafts (CC#38, Health Canada claims their pot sucks). According to Young, such shenanigans are sure proof that the system is a hopeless fraud.

“Health Canada has perpetuated a cruel hoax on sick Canadians,” Young explained to the astounded media, “they claim to have compassion and sympathy? but all they have done is hold out false hopes. Allan Rock may have had his photos in [Prairie Plant’s] mine shaft, but what you have in Canada is a highly complex procedure that gives [exemptees]a paper that protects them from prosecution? but doesn’t give them access to their medicine. It’s like telling people who want penicillin ‘get your mold and get your bread and make your own medicine.'”

The civil suit demands three remedies: that the court strike down Health Canada’s Medical Marijuana Access Regulations (MMAR) as too restrictive for the sick and dying, that the court end cannabis prohibition, and that the court force Health Canada to distribute pot grown by Prairie Plant Systems ? the government’s grow contractor ? to med-pot patients.

Young believes that a court case is the only way to spur Health Canada into action. He points out that the original exemption system was only put in place after he sued the government in 1998, on behalf of Jim Wakeford, who lives with AIDS (CC#15, Jim Wakeford ? Canada’s best hope for medical marijuana?).

“I have a handwritten correspondence from Allan Rock to my client [Jim Wakeford] promising he would give my client pot in 1999, and nothing ever happened,” Young told Cannabis Culture. “So I am entering into an adversarial role with them. In the four years I have been doing this I have learned that they will do nothing without a court breathing down their backs. I believe they will try to delay this case, to knock it through to next year.”

Marco RendaWrangling the government

Young couldn’t have chosen a more symbolic place for his announcement to the media. With Ontario’s provincial government debating only a few doors down, Young openly attacked politicians for creating an unfair and unconstitutional medical pot system.

Explaining his arguments in depth, Young described how, in July of 2000 ? as the result of another court case shepherded by Young ? Canadian courts demanded that the government create a new exemption system to replace the old Section 56 regulations. The intent of the court’s order was to simplify the exemption process for applicants who found it already too difficult.

The government was given one year to comply and make med-pot easier to access, or the whole prohibition of cannabis would be deemed unconstitutional and invalid, making all marijuana legal in Canada.

According to Young, the government failed to fulfill the condition of the court’s ultimatum when it created the MMAR the next year. The new regulations actually made med-pot even harder to access!

One problem, said Young, is that under the new rules, most patients must now have recommendations of one or two specialists in a field related to their illness, instead of just their GP. Long waiting lists and uncooperative doctors have made the system into a wall of resistance for patients seeking med-pot.

“The Canadian, Ontario, Quebec and Alberta Medical Associations have all asked doctors and specialists not to sign medical marijuana forms, making it impossible for patients to get exemptions,” Young revealed.

Young was also concerned by Health Canada’s recent announcement that government grown pot is not good enough to give patients: “Anne McLellan says Prairie Plant’s pot isn’t good enough. I don’t know what that means? Prairie Plant has the machinery and equipment to test the purity of their product like never before. Their pot would probably be purer than any pot that my clients have ever seen. Why are they holding it back, I don’t know? perhaps pressure from the DEA?”

A Cannabis Culture interview with Prairie Plant President Brent Zettl last winter confirmed Young’s sentiments. Prairie Plant’s pot was testing at 10 to 12%, and was rigorously tested for purity.

Joeseph NuebergerA human face

Young’s announcement championed eight people who are intimately familiar with Health Canada’s faulty exemption system, but because of the rules governing press conferences in the provincial legislature, only three of them were allowed to speak. They spoke about their predicaments one by one, giving a human face to the minutiae of regulations, legal wrangling, and government bureaucracy.

Mary Lynn Chamney, who lives with excessive seizures caused by epilepsy, has an exemption, but suffers from the high cost of marijuana medicine that should be provided freely by the Canadian government. “Tomatoes are $2.99 per pound, and marijuana is $3000 per pound,” Chamney told us. “I wish cannabis cost the same as tomatoes. I am not ashamed of marijuana, but I am ashamed of the burden it puts on family and friends to provide it for me.”

Marco Renda lives with Hepatitis C. In 1989, a Toronto paper published a story called “Toronto’s death row” featuring cocaine and heroin users. “I was near death when they interviewed me for that article,” Renda told us. “I have found marijuana has made me much stronger and it has also helped me kick my cocaine habit.” Renda was in the process of putting together his application for an exemption when, in October 2001, the Ontario Medical Association issued a letter advising doctors to not sign the med-pot forms. Renda’s doctor followed that advice.

Alison Myrden lives with MS and left-side trigeminal neuralgia, a stabbing pain in her face. She has been prescribed cocktails of 32 different pharmaceuticals, cocaine and morphine, but found that the pain is only relieved with cannabis. According to Myrden, she is a rare case of only a couple of hundred Canadians who have been granted licenses to grow under the new regulations, but she still has a problem with the system. “I don’t think sick people should have to grow their own medicine,” she told us. “It is absolutely ludicrous. It is a slap in the face to sick Canadians who already suffer.”

The other five applicants in the suit weren’t given a chance to speak, but have compelling stories of their own. Some, like Jari Dvorak, who lives with HIV, and Deborah Anne Stultz-Giffin, who lives with MS have their MMAR exemptions, but are outraged that the government would force sick Canadians to produce their own medicine, a difficult task for people who some days can’t even lift themselves from bed.

Catherine Devries, who lives with arachnoiditis, a painful spinal condition, had an exemption under the old Section 56 system, but can’t find a doctor to sign her new MMAR forms.

Stephen Van De Kemp lives with severe depression and had an exemption under the Section 56 system, but now Health Canada tells him that he is “fine” and doesn’t need marijuana anymore, and refuses to renew his exemption.

Warren Hitzig is the founder and director of the Toronto Compassion Club, and has been arrested, charged and robbed for providing medicine to sick people; an unfitting reward, says Young, for “discharging an obligation that the government has failed to fulfill.”

Lawyers with attitudes

Widely reputed as Canada’s foremost cannabis lawyer, Alan Young is the most likely person to win such a precedent-setting case against the government. A professor at York University, he has been involved, directly or indirectly, in most of Canada’s landmark marijuana cases of recent years. When Young takes on a case, you can almost feel the prosecution cringe. Yet even Young could not do it alone.

After the press conference, I spoke with the moral and compassionate lawyers who had assembled to do the hard work of seeing the case through the courts with barely enough funding to cover their photocopying and minor expenses, through donations offered by the Toronto Cannabis Club and a grant from the Marijuana Project. I had particular occasion to speak with Leora Shemesh, of the law firm Neuberger-Rose, who took on the responsibility for coordinating the entire case. Shemesh is a former student of Young’s.

“I have been involved in the marijuana fight from the first year of law school and now I am taking a walk in Alan’s great footsteps,” Leora lauded, “They are big footsteps to fill.”

Leora Shemesh will represent Catherine Devries, Jari Dvorak, and Mary-Lynne Chamney. A partner in the law firm where Shemesh works, Joseph Neuberger, will represent Deborah Anne Stultz-Giffin and Stephen Van De Kemp; lawyer Paul Burstein will represent Marco Renda; and Alan Young will represent Warren Hitzig.

The case will begin in July and August, when the federal crown lawyer will cross-examine the eight applicants. In September, lawyers Shemesh, Young, Neuberger and Burstein will begin presenting their case against the government.

It is an auspicious year for ending prohibition. The Canadian Senate Committee on Illegal Drugs has released their interim report on marijuana, recommending cannabis law reform, and the Canadian Supreme Court will soon rule on the Clay/Malmo-Levine/Caine case, deciding the issue of personal possession and trafficking.

“I call this the third kick at the can in 2002,” said Young. “In many ways, I feel this case is our best chance. It is a lot easier for a court to say the law is dead because it does not attend to the needs of sick people, than for them to say it is a bad law.”Alan Young

Alan Young: pot champion

“My goal as a lawyer is to reverse this trend of over-criminalization, to allow people to construct their own heaven and hell.”

Alan YoungLawyer Alan Young’s home is situated in the picturesque student apartment area of downtown Toronto, just a few blocks from the university bearing the city’s name. When I visited in his home I found wall hangings, Tibetan singing bowls, and low tables decorated as altars, revealing Young as a seeker both of social and spiritual transformation.

Perhaps it’s his spiritual side that makes Young ideally suited as Canada’s legal champion of cannabis law reform, working either upfront or behind the scenes of nearly every significant legal challenge to Canada’s pot prohibition.

Young ? a graduate of the prestigious Osgoode Hall law school in Ontario, and a professor at York University and the University of Toronto ? is one of those rare lawyers who concerns himself more with morality than cash reward. :Anyone who knows me knows that all you have to do is cry to get free legal work,” he told me as we discussed his work with victims rights, violence against women and children. :I am pretty redneck when it comes to crimes of violence.”

His strong moral side does not in anyway lend itself to prudishness. The outspoken Young believes that the pursuit of pleasure, be it cannabis, sex or gambling, should not be legislated or prohibited.

“What intrigued me originally was our society’s interest in prohibiting pleasure-seeking activities on the basis that vice leads to uncontrollable decadent behavior,” said Young. “Through the Victorian era, we ended up criminalizing a lot of consensual sexual activity, a lot of consensual drug-taking activity, consensual gambling activity. My goal as a lawyer is to reverse this trend of over-criminalization, to allow people to construct their own heaven and hell.

“The conservative mentality has always been that the fall of great civilizations is the result of pleasure-seeking activity, and that the Roman Empire itself imploded because Romans were humping themselves to death. The reality is the Roman Empire fell apart because of various tribes attacking it, and it there has never been, in my opinion, a society that fell apart as a result of pleasure-seeking activity.”

Legal history

Young’s work with cannabis-law reform reads like a history of every important marijuana-related legal decision in Canada for the last decade.

In 1997, Young challenged parliament’s authority to create laws against harmless activities like smoking or growing pot when he defended Chris Clay, the owner of a hemp and bong store in London, Ontario. Clay had been charged with cultivation and possession after growing clones in the front window of his shop (CC#02, Hemp Nation under siege). The judge upheld the law, but made a precedent by finding that marijuana use was indeed relatively harmless (CC#10, Justice denied).

The judge’s findings were instrumental in future cases, like that of British Columbia resident Randy Caine, who was charged with possession of a roach after being busted in his car (CC#01, Voyages). Caine and Clay were later rolled into a potent combo-case that could strike down the Canadian possession law when it is heard before the Supreme Court of Canada in September 2002.

Young went from the Clay case in 1997 to the Jim Wakeford case in 1998. Wakeford is a medical cannabis user who lives with HIV. As a result of the Wakeford case, the courts forced Parliament to create the Section 56 exemption program in 1999, under which sick people could apply for the first time for the government-recognized right to use med-pot (CC#19, Legal medical pot in Canada?).

In 2000, Young provided the background materials for the Terry Parker case, which was handled expertly by his colleague, lawyer Aaron Harnett. Parker is a med-pot user who lives with epilepsy, and needed med-pot for to control his seizures (CC#12, Canada’s first legal marijuana user). After the Parker case, the government was forced to revise the med-pot regulations within one year, or cannabis laws would be declared null and void (CC#28, Canada’s med-pot push). In July 2001, the government responded by implementing the new Marijuana Medical Access Regulations (MMAR) (CC#34, Medical pot grows in Canada).

In 2001, Young again championed Jim Wakeford, questioning the constitutionality of the MMAR. Although the government had created clearer rules, they actually made med-pot access much tougher. Young also attacked the government for not providing rules for a safe and secure supply of cannabis to those in need; compassion clubs and med-pot growers were still being busted by Canadian cops. The court ruled against Young’s arguments, saying that Wakeford’s ability to secure an illegal supply proved that the laws were okay, which led to this current lawsuit.